On 29 June 2015, the story of Elsa Harris, 45, and her fight against the system was doing the rounds on the Internet.
It seems that Ms Harris was driving her car in Christchurch, Dorset, when she became stuck in traffic. Her vehicle – so the news reports state – was stationary. She had partially peeled a banana prior to embarking on her journey and whilst stationary, she peeled the remainder of the banana and began to eat it.
At this point, the authorities intervened:
Ms Harris said: “An unmarked blue car started flashing at me, drove in front, then slammed its brakes on. It caused so much confusion with all the other cars, nobody knew what was going on.”
“When the officer got out he was really angry from the offset, but I was still completely unaware I’d done anything wrong.”
“The officer said I was driving without my hands on the wheel and was a danger to other drivers, but I said that was rubbish.”
It appears then that Ms Harris was given a fixed penalty notice under the Road Traffic Offenders Act 1988
We are unsure of the offence allegedly committed as the news reports don’t categorically state what the FPN was given for, however, we suspect it is an offence of being in breach of the requirements as to the control of a vehicle etc., under Road Traffic Act 1988 s.41D:
A person who contravenes or fails to comply with a construction and use requirement–
(a) as to not driving a motor vehicle in a position which does not give proper control or a full view of the road and traffic ahead, or not causing or permitting the driving of a motor vehicle by another person in such a position, or
(b) as to not driving or supervising the driving of a motor vehicle while using a hand-held mobile telephone or other hand-held interactive communication device, or not causing or permitting the driving of a motor vehicle by another person using such a telephone or other device,
is guilty of an offence.
The offence is a summary only offence, carrying discretionary disqualification and obligatory endorsement with three penalty points. The maximum fine is a level 3 fine, unless the offence is committed in relation to a goods vehicle or a vehicle adapted to carry more than eight passengers.
Under the Road Traffic Offenders Act 1988 s.51 and Sch.3, the s.41D offence is a fixed penalty offence. Under the Fixed Penalty Order 2000 (SI 2000/2792) as amended, where a fixed penalty is issued, the sum to discharge the FPN is £100 (see Sch.1 item 4).
Some news reports suggested that the offence was “driving without due care and attention” – also known as “Careless, and inconsiderate, driving” under the Road Traffic Act 1988 s.3, however this offence is not a fixed penalty offence
Is eating whilst driving an offence?
No, it isn’t, but the wording of the legislation is such to enable such behaviour to fall squarely within the definition of the offence.
Does she have to accept the fixed penalty notice?
No. If Ms Harris disputes the fact that she is guilty of the offence, she can choose to go to the magistrates’ court. As noted above, the maximum fine is a level 3 fine, which is currently £1,000. The court would, upon finding her guilty, have the option to disqualify her from driving. If they opted for that course, they would not be able to endorse her driving licence with three penalty points.
Is she guilty?
As ever this question is entirely fact-specific. Whether or not the vehicle was moving would seem to be the most pertinent question, however other considerations arise: if the unmarked police car was able to pull in front of Ms Harris’ car, was there space in front, if so, why? Was she stationary and the rest of the traffic moving, thereby suggesting that perhaps she was not paying full attention to road?
We won’t speculate as this may well end up in a trial. We’ll keep our eyes peeled (sorry!) for any updates on the story.